This memo lays out an expansive vision of presidential power, arguing that Congress cannot “place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.”

In this opinion, Yoo discussed possible changes to the laws governing wiretaps for intelligence gathering, and signaled that the government’s interest in keeping the nation safe following the terrorist attacks might justify warrantless searches.

October 23, 2001

Memorandum from John Yoo & Robert J. Delahunty to Alberto Gonzales & William J. Haynes

The United States, it was argued, was in a “state of armed conflict.” The scale of violence, the authors added, was unprecedented and “legal and constitutional rules” governing law enforcement – such as the Fourth Amendment prohibition on “unreasonable” searches and seizures did not apply. “The President has both constitutional and statutory authority to use the armed forces in military operations, against terrorists, within the United States.”

The authors added that, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.”

SUBJECT: Legality of the Use of Military Commissions to Try Terrorists

AUTHOR: Patrick Philbin, Deputy Assistant Attorney General

A legal opinion issued just a week before President Bush signed an order establishing military commissions to try prisoners who were deemed enemy combatants. In 2006, the Supreme Court ruled – in Hamdan v. Rumsfeld – that those military commissions were inconsistent with the Uniform Code of Military Justice.

The president of Amnesty International writes an urgent letter concerning detainees in U.S. custody, warning against the “cruel, inhuman or degrading treatment or punishment,” noting hooding and blindfolding detainees is a violation of the Convention Against Torture.

In this memo, Yoo writes “We conclude that these treaties [including Geneva] do not protect members of the al Qaeda organization. We further conclude that that [sic] these treaties do not apply to the Taliban militia.”

Describing Yoo’s legal analysis as “seriously flawed,” the memorandum also warns that “this raises the risk of future criminal prosecution for U.S. civilian and military leadership and their advisers.”

Secretary Rumsfeld declares that “The United States has determined that Al Qaida and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.”

Jay Bybee signs off on John Yoo’s January 9th draft, sending it in its final form to Pentagon General Counsel Jim Haynes and White House Counsel Alberto Gonzales. The memo explains that “certain deviations from the text of Geneva III may be permissible, as a matter of domestic law, if they fall within certain justifications or legal exceptions, such as those for self defense.”

SUBJECT: “Application of the Geneva Convention on Prisoners of War to the Conflict with al Qaeda and the Taliban”

AUTHOR: Alberto Gonzales, White House Counsel

This memo for the President outlines the benefits of opting out of the Geneva Conventions and lists the benefits of such a finding. Gonzales notes that non-compliance with Geneva “would create a reasonable basis in law that Section 2441 [War Crimes Act] does not apply, which would provide a solid defense to any future prosecution.”

SUBJECT: Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan

AUTHOR: Colin Powell, Secretary of State

Colin Powell warns of the consequences of opting out of the Geneva Convention. “It will reverse over a century of U.S. policy . . . and undermine the prosecutions of the law of war for our troops . . .” He adds, “it may provoke some individual foreign prosecutors to investigate and prosecute our officials and troops.”

John Ashcroft concludes that opting out of Geneva “would provide the highest assurance that no court would subsequently entertain charges that American military officers, intelligence officials, or law enforcement officials violated Geneva Convention rules relating to field conduct, detention conduct or interrogation of detainees.”

In this memo, Jay Bybee states that the President has the power to ignore Geneva’s requirement that prisoners be given “Article 5” hearings to establish their status as POWs. “The President. may use his constitutional power to interpret treaties and apply them to the facts, to make the determination that the Taliban are unlawful combatants.. We therefore conclude that there is no need to establish tribunals to determine POW status under Article 5.”

In the wake of the capture of the “American Taliban” John Walker Lindh, questions about the rights of American citizens captured in the war on terror became a new issue. In conclusion, Bybee notes “even if the Government did in fact violate Rule 4.2 by having military lawyers interrogate represented persons (including Mr. Walker) without consent of counsel, it would not follow that the evidence obtained in that questioning would be inadmissible at trial.”

SUBJECT: The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations

AUTHOR: Jay S. Bybee, Assistant Attorney General, OLC

This memorandum appears to underpin the so-called “extraordinary rendition” program. It argues that the President has an unfettered right to transfer prisoners captured in the war on terror to governments around the world without regard for whether they would be tortured.

It further argues that “so long as the US does not intend for a detainee to be tortured post-transfer…no criminal liability will attach to a transfer, even if the foreign country receiving the detainee does torture him.”

The author concludes that Congress cannot interfere with the President’s exercise of his authority as Commander-in-Chief to control the conduct of operations during war, including his authority to promulgate rules to regulate military commissions.

Arguing that “the military has the legal authority to detain (Jose Padilla) as a prisoner captured during an international armed conflict,” this opinion was issued one day before Padilla – an American citizen arrested on American soil – was designated an “enemy combatant.”

The authors further concluded that the 1878 Posse Comitatus Act that had long limited the powers of the government to use the US military for law enforcement within the United States could be suspended; it “presents no statutory bar” to Padilla’s military imprisonment.

In what has become notorious as the “torture memo,” Jay Bybee signs off on an opinion authored by John Yoo. The memorandum systematically dismisses numerous U.S. federal laws, treaties and international law prohibiting the use of torture, essentially defining the term out of existence.

John Yoo writes to White House Counsel Alberto Gonzales warning of potential threats of international prosecution regarding the administration’s interrogation policies. Yoo notes that “Interrogations of al Qaeda members … cannot constitute a war crime” because of the Presidential determination that Geneva’s protections do not apply.

Written by the Office of Legal Counsel’s Jay Bybee and sent to the Central Intelligence Agency, this heavily redacted document was released to the ACLU in 2008. It details “advising the CIA regarding interrogation methods it may use against al Qaeda members,” and in one un-redacted portion, argues that “to violate the statute, an individual must have the specific intent to inflict severe pain or suffering. Based on the information you have provided us, we believe those carrying out these procedures would not have the specific intent to inflict severe pain or suffering.”

A one page summary of Pentagon General Counsel Jim Haynes, and Vice President Cheney’s legal counsel David Addington’s trip to Guantanamo on September 25, 2002. The report notes that their stated purpose was to “receive briefings on Intel successes, Intel challenges, Intel techniques, Intel problems and future plans for facilities.”

A senior CIA lawyer meets with military officials at Guantanamo, and states that laws banning torture are “basically subject to perception. If the detainee dies, you’re doing it wrong.” The Pentagon’s top legal adviser at the camp responds, “We will need documentation to protect us.” When the military’s top criminal investigator reads the minutes, he forwards them to other senior personnel, noting “This looks like the kind of stuff Congressional hearings are made of.” Waterboarding, for example, would “shock the conscience of any legal body looking at the results of the interrogations or possibly even the interrogators. Somebody needs to be considering how history will look back at this.”

General Michael Dunlavey sends a formal request for approval of harsh interrogation techniques based on SERE up the chain of command to General James T. Hill, commander of USSOUTHCOM. The most extreme “Category III” techniques mirror “those used in U.S. military interrogation resistance training or by other US government agencies.”

General James Hill, commander of USSOUTHCOM, forwards the request to the Chairman of the Joint Chiefs, but worries that, “I am particularly troubled by the use of implied or expressed threats of death of the detainee or his family.”

Secretary Rumfeld’s General Counsel Jim Haynes, sends an “action memo” for the Secretary’s signature advising Rumsfeld to approve a list of harsh interrogation techniques. On December 2, 2002 Rumsfeld signs off, and authorizes all the Category I & II techniques, including 20 hour interrogations, deprivation of light and auditory stimuli, removal of clothing, the use of phobias such as dogs, and stress positions for up to four hours. Haynes notes that Category III techniques, including waterboarding, “may be legally available” but “as a matter of policy a blanket approval. is not warranted at this time.” As Secretary Rumsfeld signs the action memo, he adds a post-script “I stand for 8-10 hours a day. Why is standing limited to 4 hours?”

An FBI agent warns his superiors that several of the techniques being considered “are not permitted by the U.S. constitution” and others are “examples of coercive interrogation techniques that may violate 18 U.S.C. § 2340 (Torture Statute).”

This draft memo, never before released in its entirety, directly links the tactics being used at Guantanamo to the U.S. military’s torture resistance training: “These tactics and techniques are used in SERE school to ‘break’ SERE detainees. The same tactics and techniques can be used to break real detainees during interrogation operations.”

Responding to a “high level directive,” two SERE instructors travel to Guantanamo, where they lead a class of 24 Guantanamo interrogators on the use of SERE techniques based on “Biderman’s Principles.” Principles include death threats, degradation, and “induced debilitation.”

Written at the request of DoD General Counsel William Haynes, the memo is an expansion of John Yoo’s August, 2002 “torture memo” and lays out in more expansive detail what would be permitted under the administration’s interrogation policy. Haynes makes it clear that the memo is the “controlling authority” for the Working Group.

SUBJECT: “Working Group Report on Detainee Interrogations in the Global War on Terrorism”

AUTHOR: N/A

The report of the Working Group on interrogation policy is signed out. In 85-pages, it endorses a series of 35 interrogation techniques including “fear up harsh,” “emotional love,” “emotional hate,” “hooding,” and “sleep adjustment.” Though it is signed out in their names, members of the Working Group were not informed of its final contents.

This memo issued by a U.S. Army military intelligence officer requests that interrogators come up with a “wish list” of interrogation techniques for use in Iraq. The memo notes, “The gloves are coming off gentleman regarding these detainees. [REDACTED] has made it clear that we want these individuals broken.” Responding, another interrogator suggests, “… a baseline interrogation technique that at a minimum allows for physical contact resembling that used by SERE instructors. Sleep deprivation. Fear of dogs and snakes appear to work nicely. I firmly agree that the gloves need to come off.”

General Ricardo Sanchez issues guidelines for the interrogation of Iraqi detainees. The techniques he authorizes are almost a verbatim copy of those authorized for Guantanamo by Secretary Rumsfeld in April, 2003.

Written by the new head of the Office of Legal Counsel, the opinion declared that the Geneva Conventions protected “citizens and permanent residents of Iraq,” including those “who commit hostile acts against the occupying power.” This opinion provoked the ire of the Vice President’s general counsel, David Addington, an incident described in detail in “The Terror Presidency” by Goldsmith.

This memorandum repudiates John Yoo’s secret October 23, 2001 opinion asserting that the First Amendment and the Fourth Amendment of the Constitution must give way when the President deems it necessary in defense of the nation.

On December 4, 2008, Specialist Brandon Neely approached CSHRA with testimony he wished to contribute to the Guantánamo Testimonials Project. He believed that insufficient attention had been paid to ‘the hell that went on at Camp X-Ray.'”

In December, 2008, the Senate Armed Services Committee completed a classified 250-page report outlining its 18-month investigation into U.S. detention and interrogation policies. The report’s Executive Summary concludes that “(t)he abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

Senator John McCain, ranking Republican on the Committee, added, “The Committee’s report details the inexcusable link between abusive interrogation techniques used by our enemies who ignored the Geneva Conventions and interrogation policy for detainees in U.S. custody.”

Stating that “certain propositions stated in several opinions issued by the Office Legal Counsel from 2001 – 2003 respecting the allocation of authorities between the President and Congress in matters of war and national security do not reflect the current views of this Office,” this memorandum disowns the broad claims of constitutional law reflected in the OLC opinions. It does not comment upon or disown the specific policies regarding surveillance, detention and interrogation.

In a chilling investigation of the CIA’s interrogation practices during the Bush Administration, former Inspector General John Helgerson’s secret internal report provides new details about abuses that took place inside the CIA’s “dark sites,” including brandishing weapons and mock executions. (It is a violation of both the U.S. anti-torture statute, and international law, to threaten a suspect with imminent death.) But the investigation focuses much of its strongest criticism on interrogation methods that the agency had been explicitly authorized to use. Completed in May 2004, the long-suppressed report was ordered released by a federal judge in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union.

In April and May, 2005, James B. Comey, the deputy Attorney General, wrote a series of email messages to his chief of staff, Chuck Rosenberg, about his views on legal memoranda being drafted regarding the use of brutal interrogation techniques. The previously undisclosed emails – recently web-published by the New York Times – paint a clear portrait of a Department of Justice under extreme pressure from the White House to approve the techniques.

When Comey expressed “grave reservations” about one draft legal opinion, “The AG (Attorney General Alberto Gonzales) explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP’s request…”

When Comey warned that the “people who were applying pressure now would not be there when the _hit the fan…” “Pat (Patrick Philbin, Office of Legal Counsel) agreed that everyone seemed to be thinking as if they still work at the White House and not the United States Department of Justice. …It leaves me feeling sad for the Department and the AG. I don’t know what more is to be done, given that I have already submitted my resignation.”

At a meeting to prepare Attorney General Alberto Gonzales for a press conference answering questions about interrogation policy, “The AG began by saying that Dr. (then National Security Adviser Condoleezza) Rice was not interested in discussing details and that her attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for a full policy discussion.”

As part of the continuing Freedom of Information Act litigation brought by the American Civil Liberties Union seeking details of the government’s detainee programs, transcripts of four court hearings held at Guantanamo were re-released on June 15. Highly redacted when first released by the Bush Administration, these transcripts include some new details – much of it testimony about abuse during interrogations.

Self-proclaimed 9/11 mastermind Khalid Sheikh Muhammad told US military officials he had lied to the CIA after being abused: “I make up stories.” He describes being asked the location of Osama bin Laden. “Where is he? I don’t know. Then he torture me. Then I said, ‘Yes, he is in this area…”

Rahim al Nashiri, accused of involvement in the 2000 bombing of the US destroyer Cole, described the physical results of his interrogations: “Before I was arrested I used to be able to run about 10 kilometers. Now I cannot walk for more than 10 minutes. My nerves are swollen in my body.”

Abu Zubaydah, who was subjected to waterboarding 83 times in one month, testified that his CIA captors eventually told him they mistakenly thought he was the number three man in al Qaeda: “They told me, ‘Sorry, we discover that you are not Number 3, not a partner, not even a fighter.’”

The confidential report delivered to the Acting General Counsel of the CIA concluded that “in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture.” The report also made clear that health personnel offered supervision and even assistance as suspected al-Qaeda operatives were beaten, deprived of food, exposed to temperature extremes and subjected to waterboarding.

On Thursday, April 16, President Barack Obama – referring to a “dark and painful chapter in our history” – authorized the release of four documents written by the Office of Legal Counsel in the Bush administration’s Department of Justice. The memos – which were being actively sought in a lawsuit filed by the American Civil Liberties Union – construct a legal justification for using harsh interrogation techniques.

Written principally by John Yoo – and aimed at one particular detainee – this memo authorizes interrogators to strip the prisoner naked, bash him against walls, keep him awake for up to eleven straight days, sometimes with his arms chained to the ceiling – and waterboarding. According to the legal advice, waterboarding does not inflict ‘severe pain or suffering.’

Almost a year after the secret August, 2002 memorandum had been withdrawn by the Department of Justice, this new opinion once again analyzed the legality of particular interrogation techniques under the federal criminal prohibition against torture. The analysis largely relied on information provided by the CIA.

In this opinion, the OLC concluded that – as a legal matter – the CIA’s combination of interrogation techniques did not violate the torture statute, based on the CIA’s assurance that its combination of the techniques did not violate the torture statute.

This memorandum notes that, “It is difficult to quantify with precision the effectiveness of the (interrogation) program.” A footnote on page 37, citing a 2004 report by the Inspector General of the CIA, reveals that al Qaeda figure Abu Zubaydah had been waterboarded at least 83 times in 2002, and the alleged 9/11 mastermind Khalid Sheikh Muhammed was waterboarded a total of 183 times in the course of just one month in 2003.

Released by the Senate Intelligence Committee, this newly declassified Justice Department narrative details CIA interaction with top White House officials leading to the issuance of the OLC memos and the approval of brutal interrogation techniques. The timeline, for example, includes one crucial meeting: “CIA’s Office of General Counsel met with the Attorney General, the National Security Adviser, the Deputy National Security Adviser, the Legal Adviser to the National Security Council, and the Counsel to the President in mid-May to discuss the possible use of alternative interrogation methods (on Abu Zubaydah) that differed from traditional methods used by the U.S. military and intelligence community. At this meeting, the CIA proposed particular alternative interrogation methods, including waterboarding.”

On April 22, 2009, the Committee released the declassified report of its two year investigation into military interrogations of prisoners in US detention. The final report draws explicit links between the CIA’s interrogation program and the military’s harsh tactics at Guantanamo, Afghanistan and Abu Ghraib. Among the revelations: A US Army psychiatrist assigned to interrogations at Guantanamo told Army investigators that in the summer of 2002, “A large part of the time we were focused on trying to establish a link between al Qaeda and Iraq and were not successful. …there was more and more pressure to resort to measures that might produce more immediate results.”

This draft memo, never before released in its entirety, directly links the tactics being used at Guantanamo to the U.S. military’s torture resistance training: “These tactics and techniques are used in SERE school to ‘break’ SERE detainees. The same tactics and techniques can be used to break real detainees during interrogation operations.”